Reporting Killings as Human Rights Violations Handbook

Reporting Killings as Human Rights Violations Handbook

How to document and respond to potential violations of the right to life within the international system for the protection of human rights

By Kate Thompson and Camille Giffard

Handbook links: website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices
II. Identifying a Potential Violation: section links...
1. Introduction - 2. Legal Context - 3. The Right to Life - 4. Patterns of Violation - 5. Is There a Violation? - Summary of Part II

PART II - IDENTIFYING A POTENTIAL VIOLATION

2. LEGAL CONTEXT

International law typically regulates the behaviour of states in their dealings with one another. There are certain branches of international law, however, which have direct implications for individuals, in particular, human rights law and the law of armed conflict, often known as international humanitarian law. It is also possible to hold individuals criminally responsible for certain violations of international law. The focus of this handbook is human rights law, but the other fields will be referred to where appropriate, so it is important to understand how they relate to each other.

It is also important to note that certain forms of international law are more compelling than others and that they cannot be relied on in quite the same way. Treaties (formal agreements drafted and adopted by states) are binding on all states that have signed and ratified them. This means that if a state fails to respect the obligations contained in the treaty, it is in violation of international law. A second form, customary law, evolves from the practice of states and is binding on all states without the need for their express agreement. It is often difficult to identify specific rules of customary law, which means that, in order to rely on a norm of customary law before a judicial body, a significant part of the argument is to provide evidence that the norm exists. Where this is established, failure by a state to respect customary law means it is in violation of international law. Certain types of international instruments are not legally binding as such - declarations, principles, standards and codes are drafted by state representatives and experts and are indicative of what are believed to be the accepted norms, but do not create formal obligations for states. Such standards are often very detailed and can provide guidance on the implementation of a right. They can be invoked in court or before an international body to support an argument, and can be very persuasive in this role, but they cannot provide the sole basis for bringing proceedings. For example, an allegation that the right to life of Mr. X has been violated because he was shot arbitrarily by law enforcement officials, can be supported by reference to international principles on the use of firearms by law enforcement officials, but proceedings could not be brought by arguing solely that these principles have not been respected. It is important to understand this distinction in the context of the right to life because the most detailed standards relating to the right are of this kind.

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2.1. Human rights law

Human rights law governs the relationship between a state and all those persons who find themselves within the power and authority of that state. This is not limited to nationals of the state, but applies to anyone falling within the state's sphere of influence - for example, a foreign national present in the country, or a person travelling on an aircraft registered in that state, and thus subject to its laws.

Human rights standards set out the rights and freedoms which an individual is entitled to exercise and which the state should respect, such as freedom of expression, freedom of belief, the right to be free from torture, the right to a fair trial and the right to life. Some of these rights may be subject to lawful restriction, for example, where there is a conflict between two rights or where the full exercise of the right could pose a threat to the security of the state. However, certain rights are so fundamental that they may never be restricted on any ground, even in times of emergency or war. The right to life is one of these, and the state may never deprive an individual of the right to life in an arbitrary manner for any reason.

International human rights law sets out the norms and also creates a certain number of mechanisms which are responsible for the supervision of respect for the norms at the international level - it is these mechanisms which will be examined in detail in Part IV of this handbook. However, human rights law must also become a part of the national legal system. In some states, international law may be directly invoked in the national courts, so that once a state has accepted international obligations, for example by signing a treaty, it is possible to rely on those standards in court. In other systems, the state must adopt a piece of national legislation that incorporates the international standards in order for them to take effect at the national level. Once a state has accepted such obligations, it must respect and implement them. In particular, it cannot claim that its national laws prevent it from fulfilling its obligations. The obligations are general in nature, however, and the state is free to choose the means by which it implements them, provided the general objective is achieved.

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2.2. International Law of Armed Conflict

The International Law of Armed Conflict (ILAC), also referred to as international humanitarian law, is a branch of law which applies only in situations of armed conflict, both international (where the conflict involves two or more states) and non-international (where the conflict takes place in the territory of a single state and may involve governmental forces and one or more opposition forces, or only non-governmental forces divided into opposing factions). ILAC is often confused with human rights law, a confusion increased by the use of the term 'humanitarian law', but they are two independent legal regimes and function in quite different ways. In particular, it is important to understand that while human rights law creates obligations on the state which, if violated, give rise to the international responsibility of the state for breach of its treaty obligations, ILAC creates obligations for both the individual and the state, and it is possible for an individual to be tried before a criminal or military court on the basis of ILAC.

The ILAC has drawn up two main sets of rules: those regulating the conduct of hostilities (means and methods of warfare) and those regarding the treatment of vulnerable persons affected by war (the protection of victims). The rules relating to means and methods of warfare are particularly relevant in the context of unlawful killings, as they cover such matters as who or what, may be targeted, how they may be targeted, and what weapons may be lawfully used and under what conditions. The rules relating to the protection of victims are also important because they are based on the premise that persons not fighting, should be entitled to protection and cannot be deliberately targeted. The ILAC rules, which are most relevant to the right to life, will be identified in Chapter 3.1.3. As will be seen, the fields of application of human rights law and ILAC overlap and, where the incident took place in the context of an armed conflict, a single factual situation may be analysed both in human rights terms and in terms of ILAC, making it possible to argue multiple violations on the basis of the same set of events.

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2.3. Individual criminal responsibility under international law

The focus of this handbook is on establishing the responsibility of states for killings under human rights law. Certain types of killings may also give rise to individual responsibility under international law and, although pursuing such responsibility is beyond the scope of this handbook, it is useful to be aware of the circumstances in which it may be relevant.

Killings giving rise to individual criminal responsibility under international law tend to be those accompanied by some kind of aggravating factor, for example where they are committed on a large scale, against a distinct group of people, or result from torture. They must fall within the definition of a specific crime under international law, in particular crimes against humanity and genocide. A killing which violates the law of armed conflict (see Chapter 3.1.3) may also give rise to individual responsibility.

Crimes against humanity are particularly grave violations of human rights committed on a large scale. They are criminalized in the Statute of the International Criminal Court. Crimes against humanity consist of acts such as murder, enslavement, torture, rape, disappearances, forcible transfers of population, persecution against groups when the acts are committed as part of a widespread or systematic attack directed against a civilian population, and the perpetrator has knowledge of the attack. They do not have to be committed in the context of an armed conflict and the policy to commit the attack can be carried out by a non-governmental group.

Genocide is defined in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide as, certain acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, in particular, killing members of the group. The Convention establishes the individual responsibility of any person committing genocide, but responsibility is also engaged by conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide.

Where a killing falls into one of these categories, individuals may be prosecuted for these crimes before national or international courts, provided the relevant court recognises the charge as a criminal offence. Certain conventions, in particular the Convention Against Torture and the Genocide Convention, create a specific obligation on states to criminalise and prosecute individual perpetrators of grave human rights violations. The serious nature of such crimes also means that they may give rise to universal jurisdiction, which means that any state can, and sometimes must, investigate and prosecute a suspect even if the offence was carried out by a foreign national and took place in another country. On the basis of current international law, it is likely that the exercise of universal jurisdiction is limited to killings amounting to crimes against humanity or war crimes, or those resulting from torture.

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Handbook links: website home page
Table of Contents - Search - Part I: Essential Reading - Part II: Identifying a Potential Violation - Part III: How to Document Allegations of Unlawful Killings - Part IV: Responding to the Information Collected - Part V: Where can you Seek Further Help? - Appendices
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